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Legally Speaking - Where's The Justice?

Bob,

It is difficult to express my outrage after verifying the facts of the Autumn Growhowski story. I find the collision (it should never be called an "accident") terrifying, and the resulting lack of justice simply unacceptable. How can the lawyers in this case sleep at night? In six months, a killer will be free to drive, drink and perhaps kill again...and this is justice?

How could any so-called civilized society act in this manner?

M. M.


Bob,

Your article, “When justice fails” really hit home for me.

The case you refer to was in the same county in which I reside. I wonder how much different the case would have been if, instead of a bicyclist, it had been an automobile. This is a rhetorical question – but I apply it to my situation:

On July 2nd of this year, I was bicycling east on Rt, 422, approximately a mile to the west of Annville, in Lebanon County. A car that was traveling westbound on 422, just moved over to the center lane (this is a three lane highway; 1 lane EB, 1 lane WB, and a center turn lane), then the car turned left into a parking lot, immediately in front of me.

The result of the accident was a couple scratches on my person, with some glass that needed to be picked out of me. The opposing car’s right front fender was caved in and the windshield was totaled, thanks to my chin. I had no broken bones or serious cuts/bruises. My bicycle frame (an aluminum Raleigh Competition) was broken in two places. The driver of the car had no injuries.

The Pennsylvania State Police Trooper chose not to cite, as he put it, “either of [us]”. Later that day, after leaving the ER, I was aghast at that statement for two reasons:

First, I had the right of way – I was traveling to the right of the fog line, but the state trooper felt I could have prevented the accident by moving further to the right (this would have taken me into a fence and/or cement barrier), or to the left (this would have taken me into traffic). Although I do not completely remember the last few seconds before the crash, I would have done what I could to avoid the accident.

Second, the driver of the other car cut across my lane of traffic. This was at 5:30 p.m.; somebody said that she said the sun was in her eyes. Aside from my Bell helmet, I had a Day-Glo green jersey on. As I mentioned above, I felt if I had been a car, she would have seen me.

I am an experienced bicycle rider, and have been riding with clubs since my teens (currently, I’m 49) I think law enforcement is afraid to give bicyclists their due (this brings to mind the movie title, “Children of a Lesser God”). The law requires bicyclists to obey the law; however, if their right of way is violated, it’s “less of an offense.”

R. W.

Annville, Pennsylvania


Bob,

This story is so tragic and, unfortunately, the views of the jurors are so common. Drivers have no respect for cyclists and apparently neither do jurors. Having been hit from behind when on my bike by a drunk driver (0.30 BAC) a few years ago, I know how lucky I am to be writing this. I have not yet resolved the case, so I would hope the jurors would not share the same attitude, although since I was run down from behind, they would have less reason to do so. Any thoughts on steps to avoid that bias at the time of trial?

We here in Southern California are working on trying to improve public awareness about these issues in light of the Mandeville Canyon incident and another recent incident on PCH in which the police failed to cite a driver who turned right in front of a small group and caused a crash. I would think the efforts we are undertaking here in Southern California can be spread throughout the U.S. to help educate drivers, the police and even cyclists to minimize conflict and to improve safety, and that you have a good pulpit to help in our process and to spread the work product to many jurisdictions far and wide when it is done.

Thanks for writing your column and I hope all is well.

Cheers,

T. F.

Santa Monica, California


Dear T.F.,

At trial, you will want to be aware of the potential for bias, and address it head-on in jury selection, and perhaps even in your closing argument. But the real time for all of us to address jury bias is before we ever get to the court room. Two things we can do come immediately to mind. First, the way we interact with motorists on the road creates impressions of cyclists that those motorists will carry with them into the jury box. If we want fair jurors in the jury box, we have to cultivate fairness in jurors every time we ride. Second, we have to put a human face on cyclists in our day-to-day interactions with the people in our lives.
In my talks, I refer to this as “talking to Uncle Leo.” Everybody has an “Uncle Leo” who is not a cyclist, and who may even harbor somewhat negative views about “those guys in spandex.” It’s up to each of us to talk to the Uncle Leo’s in our lives, to strip away the stereotypes that justify bias, and let our Uncle Leos see that we’re really just somebody in Uncle Leo’s family who enjoys riding a bike.

Bob


Bob,

Just read your article about justice denied to the Grohowski family. If that District Attorney will agree to ride a bike on the road 50 miles a week for a year, I’ll donate one of my bikes for that purpose. He needs to know what it’s like on the road. I hope I misunderstood the jurors; basically they said: we all gun it at amber lights, so to find that guy guilty is to implicate ourselves, and we never play the part of the bad guy; so tough luck Autumn! Bob, I’m so scared for our society now that I may have to forgo reading your column. It’s the thing I look forward to most online.

Keep up the good work,

B. M.


Dear B.M.,

(I think it’s indisputable that our life experiences play a large role in how we see things when we’re serving on a jury. In fact, I’ve reported before that cyclists who behave as poorly on the road as some drivers do are making it harder for all cyclists to find justice in the courtroom. I also have no doubt that if everybody rode a bike at least once in a while, the perspective of juries, including the jury that found Gregory Moyer not guilty, would change. From anecdotal evidence, it also seems clear that prosecutors who ride take the rights of cyclists very seriously. In this case, the District Attorney felt hampered by a state law that made getting a conviction very difficult when the drunk driver killed somebody, if the person killed was also at fault in any way.

Perhaps if the D.A. also rode, he’d have a different perspective on Autumn’s approach to her left turn. Please let us know if he takes you up on your offer. Finally, I hope you’ll stick around for at least a few more columns, because the next ones coming up may give you some hope!

Bob


Bob, 

It’s a tragedy, to be sure, and I agree with the perspective that the driver got away with murder. He was drunk and probably too drunk to stop even if he had seen the cyclist in his path.

However tragic it is, Autumn wrongly assumed that the descending safety arms were a barrier to oncoming traffic. She clearly failed to look across the railroad track(s); if she had, she presumably would have seen the speeding car and not have begun her turn. Did this contributory negligence absolve the driver of responsibility to the level reached by the Lebanon D.A.? That’s not my field of expertise.

In my considerable experience (but I am not a professional), most drivers fail to look far enough down the road. So do cyclists; Autumn made the same (in this case, fatal) mistake. 

V. S.

Plainfield, New Jersey


Dear V.S.,

Generally speaking, every vehicle operator has a duty to keep a proper lookout. However, there’s no duty to anticipate the illegal actions of another vehicle operator. Thus, Autumn had no legal duty to anticipate that Moyer would run the railroad crossing, and therefore, her duty to keep a proper lookout did not extend to the other side of the lowered safety guards. From a safety perspective, it may help keep us alive to anticipate that drunk drivers do stupid things, but good safety practices shouldn’t be confused with legal requirements, because doing so would only serve to shift the blame from the drunk driver to his victims.
In this case, it’s not entirely clear from media reports how far in advance of her turn that Autumn crossed into the oncoming traffic lane. She may have crossed the lane just as she was making her turn, or she may have crossed over into the oncoming traffic lane sooner than was proper for making a left turn. Complicating matters, there is some indication that if she did cross over sooner than was proper, it was because she was evading a driver who was following her because he wanted her phone number. From the District Attorney’s perspective, however, the fact that she was in the oncoming traffic lane when she was hit placed some of the blame for the collision on Autumn, and thus, the District Attorney declined to press vehicular homicide charges.

This is an issue that any attorney handling a bicycle case must contend with. Many cyclists believe that the most serious legal consequence of breaking a traffic law will be a ticket. It isn’t. The most serious legal consequence will be an insurance company—or a defense attorney—that is all too happy to shift the blame from their negligent insured motorist to the cyclist. I’ve had to deal with this in my own practice (it was one of my motivations for writing "Bicycling & the Law"). Because the Pennsylvania vehicular homicide statute requires the death to be solely attributable to the motorist driving under the influence, when some of the blame for the collision was shifted to Autumn, rightly or wrongly, the District Attorney decided that the risk of losing was too great, and Moyer was not charged with vehicular homicide. 

Bob


Hello Bob,

After reading your article on the tragic circumstances surrounding Autumn and Kris Grohowski, I like most others can’t help but feel outrage. I am an engineer, not a lawyer. Is what Assistant District Attorney McAteer said true that "the Judge threw down the hammer" leading us to believe that was the best anyone could do? Within the law and the evidentiary circumstances, was there another possible judicial outcome?

I would really like to know if that is the best our system can do.

Thank You! S. B.


Dear S.B.,

(It does seem difficult to comprehend how a sentence of two to six months could possibly be considered to be “throwing down the hammer,” doesn’t it? I wasn’t at the sentencing hearing, so I can only guess at what factors entered into the sentence, but it’s likely that because this is Moyer’s first offense, he wasn’t given the maximum sentence. Other factors may have entered into consideration as well—for example, he showed remorse by apologizing to the Grohowski family. Ultimately, we have to remember that he was being sentenced for DUI, not for vehicular homicide.

Because Pennsylvania law mandates that Autumn’s death would have to have been due solely to Moyer driving under the influence, the most serious crime he was punished for was DUI. It’s hard to second-guess the District Attorney without having all of the facts at hand. Suffice it to say that District Attorneys serve at the pleasure of the people, and the way District Attorneys survive in office is by winning cases. That means that they can be extremely reluctant to prosecute on charges where they know they might get a conviction, but also know that they stand a reasonable chance of losing. When the law allows a drunk driver to shift the blame to his victim, a District Attorney with one eye on the ballot box may understandably forego pressing charges. Ultimately, if we want drivers who kill to be charged appropriately, we need laws on the books that make that possible.

Bob


Mr. Mionske, 

This is not a shock to me. As a physician and a cyclist in Pennsylvania, I would describe this as the most cycling unfriendly state in the union. I live outside of Philadelphia and am on the local roads on a bicycle at least 4 times a week. Rarely is there a week where I, or groups of experienced (non-recreational riders) cyclists with whom I am riding, are not harassed by motorists. The local police could not care less about this, even in the event of someone being struck. My personal top 10 list of roadway hazards include Philadelphia police vehicles, SEPTA (regional transit) drivers, suburban moms on their phones while driving the SUV, and the ubiquitous taxi drivers.

I have been on group rides where individuals have been struck, 911 called, and the cyclists were simply told to move on as the situation was one of 20 cyclists’ perceptions versus a single motorist’s. Until state and local authorities acknowledge that cyclists have a right to be on the road, that being struck by a 4000 pound vehicle even at low speed when one’s weight is less than 200 pounds represents a life threatening impact (physics 101), and that they need to enforce currently existing laws these unfortunate events will continue to occur. I am not an attorney but I would think that this family should have some form of civil recourse; money will not replace the lost life of this child, but the attention a high profile case might create could result in changes in how the local and state authorities handle these situations, particularly if there is a way to include them as one of the targets of litigation. The guy who committed this crime was a drunk who should rot with his personal demons. By failing to charge the drunk and at least attempting to obtain a greater sentence the prosecutor demonstrates that he has no respect for a human life, I think that is even worse than being an inebriated sociopath. How would the attorneys in this case feel if it was their daughter? 

M. K.

Gladwyne, Pennsylvania


Bob, 

As an adult cyclist of 30 years (and one that still braves Boulder Canyon on our stays in Colorado), I’ve told my wife to forget prosecution under current state laws and go right to civil court should a car find my rear wheel. Sad state of affairs for our judicial system.

Thank you.

R. J.

Overland Park, Kansas and Pine, Colorado


Bob,

I just read your article "When justice fails" about Autumn. This is unfortunately not the first such article that I have read about a motorist not having to pay for deaths or physical injury caused by a lack of attention, drinking and driving, etc. I am an avid cyclist and hate hearing these stories, because as a husband and father I worry every time a vehicle buzzes me while I’m out on the road. What would happen if this was me? Would my family be taken care of? Would the person have to pay (jail time or financial compensation) for injuring me, or worse yet, taking me away forever from my family?

This story has lit me up and I want to get involved in projecting our rights as cyclists and in bringing this message out to the public. If I can assist you in anyway I would be happy to and if you have any ideas of where I can begin, I am completely open. Thank you for calling attention to this issue and I look forward to your response.

Ride safe,

J. M.


Dear J.M.,

The best way to protect yourself and your family financially is through careful attention to your insurance policies. For very little additional money, you can get maximum coverage on your UM/UIM portion of your auto insurance policy; this would protect you financially if you were injured by an uninsured our under-insured motorist. You should also give serious consideration to an excess or “umbrella” insurance policy, which would only come into play when other insurance policies have been tapped out. If you haven’t already discussed these policies with your insurance agent, you should do so immediately.
I’m glad to hear that Autumn’s story lit a fire under you. In my talks around the country, one of the points I make is that we cyclists need to become involved in cycling advocacy. If you haven’t already joined a local cycling advocacy organization, I would recommend that as a first step. The next letter may provide some inspiration for you.

Bob


Good day Bob,

Recently, the Lebanon Valley Bicycle Club was resurrected after several years of dormancy. My spouse and I are former state legislators and have become tandem cyclists during the past 15 years. We felt the need for the club to be reborn and focus on advocacy. Actually, I was / am so tormented by the article “Broken” in Bicycling magazine’s January edition that this was one of the spurs for getting the club restarted.

I need your advice as to what we should do in regards to the Autumn Grohowski case. Obviously, we should have been at the trial and sentencing. We should have tried to be allowed to speak at the sentencing. But that’s water over the dam. We do have three lawyers as members; one very, very strongly arguing for cyclists as equals, another working with the Department of Transportation and a third who is mostly retired but actually ran for county judge a decade or so ago. None of them hollered at me to take action.

I’m thinking that we need to speak with the District Attorney’s staff, and the D.A. himself. We need to prepare a newspaper guest column if we can. I’m going to be encouraging a reporter who didn’t seem to feel that justice was not served to read your VeloNews.com column and see if I can stir a different reaction.

Can you offer any other suggestions for growing our advocacy portion of the website?

Thanks,

P.K.


Dear P.K.,

I think all of the ideas you’re pursuing are worthwhile. In my talks around the country, one point I always touch on is the need for cyclists to organize. You’ve already done that, and more, by resurrecting the Lebanon Valley Bicycle Club. Your other ideas — talking with the District Attorney about this case, and writing op-ed columns — are also worthwhile endeavors. Please keep me informed on the outcome of these ideas. Another idea I touch on in my talks around the country is tat there’s no need for cyclists to re-invent the wheel — we can learn from each other in our advocacy. With that in mind, I’ll throw your last question to my readers — what would be some good ways to grow the advocacy section of a cycling website?

Bob


Bob,

Truly heartbreaking.... one would rather that if a life was ended by gunshot, Moyer would have been the preferred victim.
I didn’t know if you had seen the latest Newsweek article about car-bike conflicts in Portland. It’s worth a read

D.P.

Houston, Texas


Dear D.P., 

With above-the-fold coverage in Portland happening almost daily that week, it was nearly impossible to miss the news; thanks for the tip about the Newsweek article. And keep your eye out for my next column, which delves into the recent road rage incidents in Brentwood and Portland.

Bob


(Research and drafting provided by Rick Bernardi, J.D.)


I’d like to thank everybody who has contacted me to request my appearance at their event. I will be speaking as extensively on "Bicycling & the Law" this year as my practice will allow, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com (and if you would like to contact me with a question or comment not related to my speaking tour, please drop me a line at mionskelaw@hotmail.com). I’m looking forward to meeting as many of my readers as possible this year.

This article, Where’s The Justice?, originally published on VeloNews on August 8, 2008.
 

Now read the fine print:
Bicycle and the Law, Bob MionskeBob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).
Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.
 
If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.
Important notice:
The information provided in the "Road Rights" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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